Thank you for your question. I'm intrigued by the phrasing of your question. You asked if you may sue your "ex-wife" for "my" equity in the house if she had an affair while you were married. I have three questions. (1) Why do you believe that the equity is yours? (2) You describe her as your ex-wife... are you already divorced? (3) If the answer to #2 is "yes", have the martial assets already been divided by court order?

Customer:

I believe the equity is mine because she got the house in the divorce but my name is XXXXX XXXXX the note and she claims adultery on my part but I find out now she did the same thing.

Brandon M. :

Ok, so it sounds like the community assets have already been divided in the divorce. How long ago was that finalized?

Customer:

Two years

Brandon M. :

Although adultery is grounds for divorce in Texas, it normally will not have an impact on the division of community assets. You mentioned that she claimed adultery at the time of the divorce; did that have any impact on how the assets were divided?

Customer:

I think so

Brandon M. :

Was the property division decided by the court?

Brandon M. :

In other words, was it contested and taken before the court where the division was decided?

Customer:

Yes but I think it was unfair with a woman judge that hated men

Brandon M. :

During the course of the trial, did your ex-wife offer evidence of your adultery?

Customer:

Not that I recall

Customer:

I'm sorry this is probably a waste of time

Brandon M. :

It might be too early to make that determination, but I'll leave it up to you. I can give a quick answer that shoots from the hip, but I was hoping to get some additional information so I could give as complete an answer as possible.

Customer:

ok

Brandon M. :

That said, if you're no longer interested in exploring the question, you're certainly under no obligation to do so. Just let me know, and there are no hard feelings.

Customer:

please continue

Brandon M. :

Thanks. Did you request or receive a statement of decision from the court after your trial, explaining how the court rendered its decision?

Customer:

I would have to look at my divorce papers

Brandon M. :

Ok, I'm not sure if you have those available to you right now. If you have them in front of you, it would be ideal if you could check. However, we can work around it if you don't have that information right now. It's up to you.

Customer:

Would that be the final decree of divorce

Brandon M. :

It would typically be its own separate document. Basically, upon request or (rarely) upon its own inclination, the court may issue an explanation for how it reached its conclusion in a contested case. So what I'm looking for is if the court provided a written explanation for how it reached its conclusion. I'm asking because if the issue of adultery played a part in the court's final decision, I would be more inclined to say that adultery by the other spouse might be relevant for any given case.

Customer:

Would that be the final decree of divorce

Customer:

No I do not see that

Brandon M. :

I would normally not expect there to be one unless either spouse requested it, so I'm not surprised, but I needed to ask. Thank you for your patience.

Brandon M. :

Last, I would like to get a better understanding of this arrangement that you have where the home is in your name. You said that your ex-wife got the house in the divorce. There might be several reasons why this situation has resulted, but why is your name still on the note?

Customer:

I have gone to Chase and have sent her the paperwork to fill out but she has not done so. This is to keep my credit low

Brandon M. :

Thank you.

Brandon M. :

I do have one final question. Was your ex-wife's adultery committed before or after you separated? I realize that it occurred before you divorced, but was it before you separated from her?

Customer:

Yes

Brandon M. :

Thank you.

Brandon M. :

I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, as I alluded to previously, although adultery is grounds for divorce in Texas, it normally does not play any role in property division. What this means that if either spouse commits adultery, it will not result in one spouse or the other getting more or less property under any ordinary circumstance. So regardless of whether you committed adultery, your wife committed adultery, both of you committed adultery or neither of you committed adultery, the property of the marriage would ordinarily be divided exactly the same way.

You said that you do not recall your wife entering evidence of an adulterous relationship into evidence at trial. In addition to the fact that adultery will typically have no bearing on property division whatsoever, even in the cases where it is relevant the proof of the adultery would have to be offered to the court during trial for it to be considered. So even if a court did believe that it was relevant to the property division for some reason, the court even then could not consider it as a factor without proof. So it would not have any impact on the case whatsoever previously, and it would typically have no impact later even if new facts were discovered. In short, it just isn't relevant under ordinary circumstances in matters of property division before, during, or after trial.

This isn't to say that the judge in your case acted fairly--I have no way of knowing if she had it out for you, but I have encountered enough judges to know that some of them are good and some of them are just terrible, and if you got a terrible one then it's entirely possible that you didn't get a fair outcome, but it wouldn't be an unfair outcome based on the adultery, and new evidence of an adultery typically wouldn't change anything.

I discuss what happened at trial already and going back to trial because a new suit for a claim of equity in a marital home would be considered a retrial, and that is usually not permissible under a legal principle called res judiciata.

With all of those things said, when a spouse has been ordered to take over title to a home and has willfully failed to do so, it can potentially constitute criminal contempt of court. Criminal contempt of court is when someone knowingly and willfully disobeys a court's order. Furthermore, the willful, knowing failure to change title to a home pursuant to a court's order is also cause for a civil suit for any foreseeable damages. In other words, if a spouse willfully and knowingly fails to take ownership of a home pursuant to a court order, and if the other spouse suffers foreseeable damages as a result, the other spouse can sue for compensation for those damages.

Brandon M. :

So it is obviously not a perfect situation, but these things can rarely be solved in a few hours or even a few days. Nonetheless, I do hope that this information gives you some understanding and direction. Does all of this make sense?

Customer:

So i can sue for compensation for damages to my credit

Customer:

How much should i ask for

Brandon M. :

Compensatory damages are equal to whatever the losses are. Sometimes, there are no damages. Sometimes, it can take the form of a higher interest rate on a home, or getting turned down for a car loan. The plaintiff can recover whatever forseeable damages there are, past present and future.

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